Abortion: Response to a Letter to The Times, 17th October 2008

In a letter published today in The Times Newspaper a group of Medical Law and Ethics academics call for the UK’s Abortion Act to be modernised. Whilst I welcome this contribution to the on-going debate about the provision of abortion services in the UK, I am concerned by the focus on the suggested paternalistic role of doctors in restricting a woman’s access to abortion.

The signatories to the Times letter address themselves to the UK Government, asking that their arguments be considered as Parliament decides whether and how to amend the Abortion Act 1967. They argue that an individual – whether pregnant or not- has a right to be autonomous, that is to decide what does or doesn’t happen to her. I would agree. They then suggest that the requirement in the UK that two doctors “agree” an abortion can take place is an unwarranted infringement of the woman’s right to self-determination. It is here that I believe their argument goes astray. By using the word agree rather than confirm (the term used in the declaration the doctors must make), and by making a discussion of paternalism in medicine their opening line, they appear to misunderstand the role of the doctor.

The carefully worded written statements that two doctors must sign before an abortion takes place asks those doctors to confirm (not agree) that the provisions of the Act have been satisfied. No more, no less. This requirement of confirmation that the provisions of the Act have been satisfied is not the origin of any restrictions on the woman’s autonomy but rather a manifestation thereof.

The doctors involved are not required, as stated in the letter, to agree or consent to the procedure but are instead asked to confirm whether or not, in their opinion, the criteria specified in the Abortion Act are met in this case and if so how. It isn’t, I can assure you, a task that most of us enjoy. In fact I’d go as far as to say it is one of the sadder and more depressing of the written statements we are asked to make. As long as the provisions of the Abortion Act continue to be framed in terms of the mental or physical health of the woman or her family then I guess a medical opinion will probably continue to be required. Or, at the very least, someone will have to ensure that the woman herself understands the provisions of the Abortion Act and is equipped to determine and declare for herself whether her circumstances fulfill those provisions.

As it currently stands the Abortion Act does allow termination of pregnancy under many, but not all, circumstances. When those circumstances exist then the woman’s right to autonomy is not undermined by the requirement for two doctors to declare the provisions of the Act have been complied with. The doctors confirm; the woman consents, or not. When the woman’s circumstances do not meet the criteria specified by the Abortion Act then it is the Act that restricts the woman’s autonomy not the declaration thereof by the doctors concerned.

Personally, I’d be happy for women to self-declare that their circumstances meet the requirements specified in the Act. If that happens then making that declaration will not be the same as consenting to the abortion. Declaring that an abortion would not be illegal does not consent the women involved to the procedure, it merely confirms that complying with her autonomously declared wish for an abortion would not be illegal.

An alternative approach to requiring a woman seeking an abortion to understand the requirements of the Abortion Act and make a legally-binding statement that she satisfies its provisions, and one favoured by the authors of the Times letter, is to remove all restrictions prior to 24 weeks pregnancy. This would remove the need for anyone to confirm anything at this stage (other than how advanced the pregnancy is) thereby leaving the woman free to make her own decision with minimal intrusion by the Law.

There are valid arguments to be made about limiting the extent of current legal restrictions in regard to abortion in the UK. In making those arguments it is important however to acknowledge that the co-opting of doctors by the State in order to determine whether the the Abortion Act is complied with has nothing to do with paternalistic doctors. It is instead a manifestation of the restrictions already imposed by the Law on pregnant women who wish to have an abortion.

Being co-opted as agents of the State is something that most doctors would, I’d hazard a guess, willingly give up. Making legally-binding written declarations about the Law is a responsibility no one bears lightly, especially in a medical context when issues such as abortion are at stake. So, by all means, argue for the abolishment of all restrictions before 24 weeks or for women to self-certify that, in their case, the requirements of the Abortion Act have been met. But don’t, please, conflate the requirement for doctors to confirm that the requirements of the Abortion Law have been met with the false suggestion that the consent of doctors is required before an abortion can take place. It is the woman who consents to the abortion and not, even under our currently flawed system, the doctor.